Texas Judge Strikes Portion of Abortion Law; Abbott to Appeal

2 Sep 2014

DALLAS, Texas — Friday, Judge Lee Yeakel of the United States District Court for the Western District of Texas, Austin Division, ruled that parts of Texas’ abortion law, HB 2, were unconstitutional. The law was passed in 2013 after two special sessions and a filibuster that launched State Senator Wendy Davis on to the national stage and into the 2014 Governor’s race. The law was scheduled to take effect on September 1, but Yeakel’s ruling now blocks enforcement of two key sections.

Yeakel described HB 2 as “a brutally effective system of abortion regulation that reduces access to abortion clinics, thereby creating a statewide burden for substantial numbers of Texas women,” and dozens of abortion clinics have closed since the law was passed. The pro-life blog LifeNews credits the law with reducing abortions in Texas by thirteen percent.

The first section blocked by the ruling is the requirement for all currently-licensed abortion clinics to meet the standards under Texas law for ambulatory surgical centers, because that “imposes an undue burden on the right of women throughout Texas to seek a previability abortion.” “Undue burden” is the standard applied by courts to evaluate laws that restrict abortion, and prohibits legislatures from passing laws that are too severe, burdensome, or overly restrictive on one’s fundamental rights. The United States Supreme Court ruled in Planned Parenthood v. Casey that a burden may be “undue” because it is too severe or because it lacks a legitimate, rational justification.”

Yeakel also ordered an exemption for the McAllen and El Paso areas from the section of the law that mandated abortion doctors to have admitting privileges at a nearby hospital, stating as his reasoning that there were few abortion clinics in that area and the long distances enforcing this provision would force women seeking abortions to travel constituted an undue burden.

The opinion also upheld the section of the law that requires abortions that are medically-induced with mifepristone — commonly referred to as RU-486 — to more closely adhere with the protocols established by the Food and Drug Administration, because even though the FDA protocol was potentially more burdensome and expensive than the off-label protocol preferred by many Texas abortion clinics, as the Supreme Court had ruled in Casey, “the incidental effect of making it more difficult or more expensive to procure an abortion cannot be enough to invalidate a law,” and in this case, the undue burden standard had not been met. However, Yeakel did rule that such restrictions on medically-induced abortions could not be enforced against any doctor who determined, “in appropriate medical judgment,” that a medically-induced abortion using the off-label protocol was necessary “for the preservation of the life or health of the mother.”

The case has been before Yeakel before, in 2013, when he struck the admitting privileges provision from the law entirely. That ruling was mostly overturned by the Fifth Circuit Court of Appeals in New Orleans, who then sent the case back to Yeakel’s court for further review, resulting in Friday’s opinion.

Attorney General Greg Abbott has appealed this latest ruling, filing an emergency motion with the Fifth Circuit on Sunday, as reported by the Houston Chronicle. Abbott’s motion, which argues that Yeakel “failed even to mention (much less follow) precedent” from the Supreme Court and prior appellate rulings in this case, requests a ruling by Friday.